HAINES v. ASTRUE et al

Filing 13

ORDER denying 8 Plaintiff's Motion for Summary Judgment; granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/29/2012. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANIEL A. HAINES,

Plaintiff,
vs.

Civil Action No. 11-309

MICHAEL J. AS TRUE ,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o

R D E R

AND NOW, this 29th day of March, 2012, upon consideration
of the parties' cross-motions for summary judgment, the Court, upon
review of the Commissioner of Social Security's final decision, denying
plaintiff's claim for disability insurance benefits under Subchapter
II of the Social Security Act, 42 U.S.C. §401, et

~.,

and denying

plaintiff's claim for supplemental security income benefits under
Subchapter XVI of the Social Security Act, 42 U.S.C. §1381, et seq.,
finds that the Commissioner's findings are supported by substantial
evidence and, accordingly, affirms.

See 42 U.S.C. §405(g) i Jesurum

v. Secretary of U.S. Department of Health & Human Services, 48 F.3d
114, 117 (3d Cir. 1995)

i

Williams v. Sullivan, 970 F.2d 1178, 1182

(3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993)
Bowen, 845 F.2d 1211,1213 (3d Cir. 1988).
1

i

Brown v.

See also Berryv. Sullivan,

738 F. Supp. 942, 944 (W.D. Pa. 1990)

(if supported by substantial

evidence, the Commissioner's decision must be affirmed, as a federal
court may neither reweigh the evidence, nor reverse, merely because
it would have decided the claim differently) (citing Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. i981)).1

Plaintiff raises a number of grounds on which he believes the
Administrative Law Judge ("ALJ") erred in finding him to be not disabled.
However, his arguments have no merit, and whatever imperfections do appear
in the ALJ's findings do not warrant a remand.
One of Plaintiff's contentions is that the ALJ failed to consider his
asthma at Step Two of the analysis. He raised this issue the first time this
case was before this Court as well. The Court at that time stated that it
agreed with the ALJ that the record established that Plaintiff's asthma has
no more than a minimal effect on his work capacity. There is nothing new
in the record that would change this finding. The Court also explained at
that time that the Step Two determination as to whether Plaintiff is suf
from a severe impairment is a threshold analysis requiring the showing of
only one severe impairment. See Bradley v. Barnhart, 175 Fed. Appx. 87, 90
(7 th Cir. 2006). In other words, as long as a claim is not denied at Step
Two, it is not generally necessary for the ALJ specifically to have found
any additional alleged impairment to be severe. See Salles v. Commissioner
of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007) i Lee v. Astrue,
2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr. 12, 2007) i Lyons v. Barnhart, 2006
WL 1073076, at *3 (W.D. Pa. March 27, 2006). Since Plaintiff's claim was
not denied at Step Two, it does not matter whether the ALJ correctly or
incorrectly found Plaintiff's asthma to be non-severe.
However, even if an impairment is non-severe, it may still affect a
claimant's residual functional capacity ("RFC"). In assessing a claimant's
RFC, the ALJ "must consider limitations and restrictions imposed by all of
an individual's impairments, even those that are not \ severe. ,,, S. S .R. 96-8p,
1996 WL 374184 (S.S.A.), at *5 (July 2, 1996). See also 20 C.F.R. §§
404.1545 (a) (2); 416.945 (a) (2). "While a \ not severe' impairment (s)
standing alone may not significantly limit an individual's ability to do
basic work activities, it may - when considered with limitations or
restrictions due to other impairments be critical to the outcome of a claim."
S.S.R. 96-8p at *5. Accordingly, merely because the ALJ did not find
Plaintiff's asthma to be severe does not mean that this condition could not
still have affected Plaintiff's RFC. Nonetheless, the ALJ referenced the
Plaintiff's asthma, and was aware of the condition, in determining
2

Plaintiff's RFC (R. 450, 457), and substantial evidence supports her
findings. Indeed, the Court does not see anything in the record that would
suggest additional limitations from Plaintiff's asthma not already included
in Plaintiff's RFC, nor has Plaintiff suggested any.
plaintiff also argues that the ALJ erred in her Step Three
determinations by failing to adequately discuss whether Plaintiff met several
listings. The primary problem wi th this argument is that he does not attempt
to establish that he actually meets any of these listings, and nothing in
the record suggests that he does. He argues only that the ALJ failed to
address all of the relevant issues. However, none of the alleged deficiencies
require a remand. For instance, Plaintiff points out that the ALJ cited to
Listing 5.05 (Chronic Liver Disease) rather than Listing 5.06 (Inflammatory
Bowel Disease), see 20 C.F.R. § 404, Subpt. P, App. 1, §§ 5.05, 5.06, in
analyzing Plaintiff's Crohn's Disease at Step Three, but the record makes
it very clear that this is a mere typographical error and that the ALJ did,
indeed, engage in the proper analysis under Listing 5.06. (R. 454). In fact,
the ALJ specifically cited to the factors in that listing, which are very
different from those in 5.05. Further, Plaintiff argues that the ALJ did
not consider his obesity in determining whether he met a listing. While his
obesity was not expressly discussed in the part of the ALJ's decision
pertaining to Step Three, both his obesity and his issues with his weight
were discussed at length throughout the decision, and the ALJ was clearly
aware of the issue. (R. 448,449,450,457). Moreover, thereisnoindication
that Plaintiff's obesity would have any impact on the ALJ's determinations
at Step Three. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
Plaintiff further argues that remand is appropriate because the ALJ
failed to mention Global Assessment of Functioning ("GAF") scores of 45 and
44 assigned by Drs. James W. Millward, M.D., and Peter Saxman, Ph.D.,
respectively, in determining hi s RFC. GAF scores do not directly correlate
to a determination of whether an individual is or is not disabled under the
Act:
The GAF scale, which is described in the DSM III R (and
the DSM-IV), is the scale used in the multiaxial
evaluation system endorsed by the American
Psychiatric Association. It does not have a direct
correlation to the severity requirements in our mental
disorders listings.
65 Fed. Reg. 50746, 50764 65. While under certain circumstances a GAF score
can be considered evidence of disability, standing alone, a GAF score does
not evidence an impairment seriously interfering with a claimant's ability
to work. See Lopez v. Barnhart, 78 Fed. Appx. 675, 678 (10 th CiL 2003). GAF
scores may indicate problems that do not necessarily relate to the ability
to hold a job. See id. i Zachary v. Barnhart, 94 Fed. Appx. 817, 819 (10 th
Cir. 2004) i Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7 th Cir. 2003) i Howard
3

v. Commissioner of Soc. Sec., 276 F.3d 235, 241 (6 th Cir. 2002); Power v.
Astrue, 2009 WL 578478, at *8 (W.D. Pa. Mar. 5, 2009). Nonetheless, a GAF
score is evidence that an ALJ should consider in determining a claimant's
impairments and limitations in setting forth the claimant's RFC and in
fashioning a hypothetical question to the vocational expert ("VE"). See
Irizarry v. Barnhart, 233 Fed. Appx. 189 (3d Cir. 2007).
Of course, an ALJ need not discuss every piece of evidence in the record,
see Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001), and GAF scores
are not afforded any unique status in that they must expressly be discussed
and analyzed in all cases. The Court must look at the overall context. For
instance, in Gilroy v. Astrue, 351 Fed. Appx. 714 (3d Cir. 2009), the Third
Circuit Court of Appeals held that remand was not required where the ALJ
did not reference a GAF score of 45 assigned by the treating psychiatrist
where the ALJ did refer to observations from the psychiatrist's reports and
where the psychiatrist did not explain the basis for the GAF score. Here,
the GAF score of 44 assigned by Dr. Saxman, a one-time examining consultant,
was consistent with his finding of serious work limitations.
(R. 526-31).
However, the ALJ gave little weight to that opinion and adequately explained
her reasons for doing so.
(R. 452 53, 454, 457). There was no need to
specifically discuss a GAF score that was in line with the consultant's
opinion when the ALJ squarely addressed the far more specific work-related
limitations set forth in that opinion and gave them little weight.
Dr. Millward assigned a GAF score of 45 once in June 4, 2003.
(R. 238) .
In his accompanying report, he set forth no specific work-related
limitations. However, he later opined far more directly on Plaintiff's
ability to work, stating that it appeared that Plaintiff could hold a job.
(R. 363). Although the ALJ did not
fically mention the GAF score
assigned on June 4, she did extensively discuss Dr. Millward's examination
of Plaintiff on that date and his treatment of Plaintiff
ly.
(R.
451-452, 457). The ALJ rightly focused her discussion more on Dr. Millward's
far more specific work-related findings than on an amorphous GAF score. It
must be emphasized that the ALJ did not "pick and choose" from different
GAF scores, choosing the one that would weigh against disability. Rather,
she discussed the findings and opinions of the treating and consulting
professionals at length wi thout specifically mentioning GAF scores that would
not have altered the analysis. The Court further notes that the earlier ALJ
decisions in this case both referenced Dr. Millward's assigned GAF score
(R. 19, 38), and it would seem to follow that the ALJ, although not the author
of those decisions, would have been well aware of the score.
Plaintiff further argues that the ALJ's RFC determination is
insufficient because it fails expressly to include a statement that he is
moderately limited in his ability to maintain concentration, persistence,
and pace, citing Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004). However,
that case is inappos te. First, in Ramirez, the ALJ found that the claimant
"often" suffered from deficiencies of concentration, persistence, or pace,

4

resulting in a failure to complete tasks in a timely manner, and that the
ALJ's RFC determination that the claimant was limited to simple, repetitive
one or two step tasks did not sufficiently take the claimant's deficiencies
into account. Here, the ALJ found that Plaintiff had moderate I
ions
in concentration, persistence, or pace. Plaintiff is correct that the Social
Security regulations pertaining to mental impairments were revised, and the
evaluation of concentration, persistence, and pace was changed from a
five-point scale based on the frequency of the deficiencies to the current
five-point severity scale, and both "often" and "moderate" occupy the middle
position in their respective scales. See Reynolds v. Commissioner of Soc.
Sec., 2011 WL 3273522, at *13 (W.D. Pa. July 29, 2011). Nonetheless, recent
Third Circuit decisions have distinguished Ramirez based on the difference
between "often" suffering from these deficiencies and being "moderately"
limited in those areas. See McDonald v. Astrue, 293 Fed. Appx. 941, 946-47
(3d Cir. 2008) (noting that the ALJ properly accounted for his finding that
the claimant had moderate limitations in concentration by limiting him to
simple, routine tasks). See also Menkes v. Astrue, 262 Fed. Appx. 410, 412
(3d Cir. 2008) ("Having previously acknowledged that [the claimant] suffered
moderate limitations in concentration, persistence and pace, the ALJ
[properly] accounted for these mental limitations in the hypothetical
question by restricting the type of work to 'simple routine tasks.''').
More importantly, in Ramirez, the ALJ had limited the claimant to
simple, repetitive one or two-step tasks. Here, the mental limitations found
by the ALJ were far more extensive. Plaintiff was not only limi ted to simple,
routine, repetitive tasks, he was also limited to work not performed in a
fast-paced work environment and that involved only simple work related
decisions and, in general, relatively few workplace changes. These
limitations go far beyond a limitation to simple, repetitive one or two-step
tasks and clearly account for Plaintiff's deficiencies in concentration,
persistence, and pace.
Finally, Plaintiff argues that the testimony of the VE was not
consistent wi th the Dictionary of Occupational Ti tIes ("DOT") and, therefore,
did not constitute substantial evidence upon which the ALJ could rely.
However, he points to an actual inconsistency in regard to only one of the
four jobs the ALJ found Plaintiff could perform. While he does also correctly
state that DOT No. 692.658-194 does not refer to the stamping operator
position, DOT No. 652.682-030 does refer to the position of stamping press
operator (any industry) , a position requiring only light work and a reasoning
level of 2. Accordingly, the only job alleged to be inconsistent is the drill
punch operator position, which Plaintiff accurately states is listed as a
medium job in the DOT. However, even factoring out this position, there are
still a significant number of jobs in the national economy that Plaintiff
can perform. Indeed, the VE testified to four additional jobs that Plaintiff
could perform at the sedentary level. Moreover, any "conflict" regarding
whether employers allow employees to be off task more than 90 percent of
the time is irrelevant, because the ALJ found no such limi tat ion . The Court
5

Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No.8) is DENIED and defendant's Motion for
Summary Judgment

(document No. 11)

is GRANTED.

s
N. Bloch
United States District Judge
ecf:

Counsel of record

further notes that, Social Security Ruling 00-04p notwithstanding, an
unexplained conflict between a VE's testimony and the DOT does not require
remand if substantial evidence supports the ALJ' s findings. See Rutherford,
399 F.3d at 557; Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir. 2003 .
Moreover, minor unexplained inconsistencies do not necessarily warrant a
remand. See Rutherford, 399 F.3d at 558.
While the ALJ's decision probably could have been drafted with more
precision, in the end, nothing in the decision mandates remand. Substantial
evidence supports the finding that Plaintiff is not disabled.

6